Lyne v Lloyd
[2017] NSWLEC 1111
•02 March 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Lyne v Lloyd [2017] NSWLEC 1111 Hearing dates: 2 March 2017 Date of orders: 02 March 2017 Decision date: 02 March 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [26]
Catchwords: TREES [NEIGHBOURS] Damage to property; further damage likely; removal ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Fraser Lyne (Applicant)
Christine Lloyd (Respondent)Representation: Applicant: Fraser Lyne (Litigant in person)
Respondent: Christine Lloyd (Litigant in person)
File Number(s): 367085 of 2016
Judgment
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COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two trees growing on the adjoining property as well as rectification of damage property to its original state.
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The orders are sought on the applicant’s contention that the roots of the trees are causing damage to property on his land, the paved pool surround and a drainage pipe behind a retaining wall.
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The applicant is also seeking reimbursement for the costs associated with DNA testing of roots as well as the court filing fee. In regards to this element of the claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.
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The respondent accepts that she is responsible for the trees on her property. Her main contention is that all she sought from the applicant was a report from an AQF level 5 Arborist but this was not forthcoming.
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In applications under s 7 Part 2 of the Trees Act, there are a number of jurisdictional tests that must be satisfied before the Court’s powers to make orders under s 9 are engaged.
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I am satisfied that the trees are wholly on the respondent’s adjoining property.
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I am also satisfied that s 10(1)(a) is met and there has been a reasonable attempt to reach an agreement.
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In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.
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Injury is not pressed.
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The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.
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The trees the subjects of the application are a Ficus microcarpa (Fig) and a Cupressus sp. (Cypress). They are wholly on the respondent’s land and within about 1m of the common side, rear boundary. The Cypress is a mature specimen in average condition located close to the north-eastern corner of the respondent’s property. The Fig is a healthy and vigorous semi-mature individual.
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Relevantly, the applicant purchased his Port Macquarie property in June/July 2015 some 15 months or so after the respondent purchased her property. The trees were well established when the parties occupied their properties.
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According to the respondent, on advice from Port Macquarie – Hastings Council, both dwellings date from about 1997 and the applicant’s pool was installed in about 2003. The pool surround is paved with clay pavers.
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According to oral evidence given by the applicant’s father who resides on the property, in about August/ September 2016 he noticed several of the pavers had lifted. On removing the pavers he found roots, which appeared to come from the nearby Fig tree. Several roots and some foliage were collected and sent to the Sydney Royal Botanic Gardens for DNA analysis. The material was confirmed as being from a Ficus microcarpa. Other sections of paving were lifted and fig roots found.
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In about November 2016, in order to comply with pool fencing regulations, the applicant had the rear of the property landscaped. The previous slope was terraced and retained with a timber retaining wall. A woody root from the Cypress was cut during this process. It was also discovered that a previously installed agricultural drainage line, parallel to the dividing fence, had been blocked by fig roots.
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The applicant states that the Cypress tree has not caused any structural damage to his property. During the hearing the applicant’s father stated that the only reason the removal of the Cypress was sought was on the advice of an arborist who suggested that if the Fig were to be removed this may expose the conifer to winds and then presumably to failure. There is no written advice to support this.
Findings and consideration
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During the on-site hearing I observed slight lifting of some pavers and fine cracking of mortar between pavers in other parts of the paved pool surround. Two small sections of pavers had been removed, the ground beneath excavated and roots exposed. With the arboricultural expertise I bring to the court, I am satisfied that the roots are from the Fig. I am satisfied that the nexus between the tree and the damage is established. I find the relevant tests in s 10(2)(a) met for this tree, and the Court’s jurisdiction is engaged.
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Section 9(1) of the Trees Act provides that the Court may make any orders it thinks fit in the circumstances.
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This requires consideration of any relevant matters under s12 of the Trees Act. Relevantly, the respondent values the tree for privacy and should it be removed, she has discussed suitable replacement species with the council’s Senior Arborist. I note that the species has been recently listed as a species that does not need council approval for removal.
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The applicant, who is a builder, accepts that at this stage the damage is cosmetic; however, he does not wish it to worsen.
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While the damage is minor, the tree is still relatively young but has the potential to reach quite massive proportions. As the tree grows, the woody roots will expand and cause further lifting. While it may be possible to install a root barrier along the fence in order to contain the roots on the respondent’s property, given the proximity of the tree to the boundary this would inevitably sever structural roots and predispose the tree to failure. The Court cannot make orders that may create a hazard. In my view, the only practical and cost-effective way of abating the current damage and preventing further damage is to order the removal of the tree. As is usual in these matters, the cost of removal rests with the respondent. While poisoning of the stump would be sufficient to prevent any regrowth of the tree, the respondent would prefer the stump be ground rather than have the remaining section poisoned.
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The applicant would prefer the removal to take place within the next 3 months; however I accept that there are personal and extenuating circumstances, which warrant an extension of the time frame for the removal to a period of 4 months from the date of the hearing. The tree is not a risk to life and I would not expect the lifting to increase significantly in that time frame. Nothing prevents the applicant from continuing to sever roots on his side of the fence.
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In considering the compensation claim, the supplementary evidence provided by the applicant includes a quote of $9800 for repaving an unspecified area of the paving around the pool. This includes lifting and storing the pavers, removing the bedding layer of crusher dust, removing any fig roots and then relaying the paving. As stated above, the applicant accepts that the damage is cosmetic. I also note that the applicant did not obtain an independent pre-purchase building inspection report; therefore the condition of the paving at the time of purchase cannot be verified. I observed the vast majority of the paving to be in excellent condition. In my opinion, repaving is not justified in the circumstances. Given his occupation, it should not be difficult for the applicant to replace the small sections of lifted pavers. No orders will be made for any rectification of the paving at the respondent’s expense.
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The compensation claim also requests the removal and replacement of the damaged drain adjoining a section of retaining wall along the fence. The quote for this is $2100. The condition of the pipe at the time of purchase could not be verified. It is possible that it may have been blocked for some time. Orders for compensation/ rectification can only be made against a respondent in the time that they and an applicant have owned their properties.
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In regards to the Cypress, the applicant accepts that it has not caused any damage to his property. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. I am not satisfied on any evidence before me that the Cypress is likely to cause any damage in the near future. I also note that the tree pre-exists the recent landscaping work carried out on the applicant’s land and adjacent to the tree. As s10(2)(a) is not met for the Cypress, no orders can be made for any intervention with it.
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In conclusion, the Orders of the Court are:
Within 120 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove the Fig tree at the rear of her property to ground level and to grind the stem and woody roots to a depth of at least 400mm below ground level.
The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent.
Should it be required, the applicant and his tenants are to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in (1).
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Judy Fakes
Acting Commissioner of the Court
Decision last updated: 07 March 2017
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